Former Supreme Court Justice David Souter, who was nominated to the court by GOP President George H. W. Bush in 1990, then sided with leftist judges in some critical cases, died at his home in New Hampshire on Thursday. He was 85.
Souter, a lifelong bachelor, was a Rhodes Scholar at Oxford University in England and graduated from Harvard Law School before eventually becoming Attorney General of New Hampshire.
“Bush’s chief of staff assured Republicans that the pick would be a ‘home run for conservatives’ who were on the brink of a significant remaking of the court. But the nominee proved to be anything but,” The Washington Post noted. “In nearly two decades on the court, Justice Souter was a reliable vote for the liberal side of the bench in cases involving affirmative action, gay rights, separation of church and state, and restriction of the death penalty.”
Although he was nominated by a Republican, Souter may have given a hint that he would not stick to an originalist view of the Constitution during his confirmation hearings. Asked about Griswold v. Connecticut —the case in which a “right to privacy” was enshrined by the court, arguing it was derived from penumbras of other explicitly stated constitutional protections — Souter said that the “due process clause … does recognize and does protect an unenumerated right to privacy.” He later stated that the Constitution’s “concept of limited government” was “not to simply be identified with the enumeration of those specific rights or specifically defined rights that were later embodied in the ‘Bill of Rights.'”
The ”right to privacy” was extended by the Supreme Court in the cases Eisenstadt v. Baird (1971), Roe v. Wade (1973) and Lawrence v. Texas (2003), affirming the nationwide right to abortions as well as ultimately leading to Obergefell v. Hodges (2015), in which the Supreme Court affirmed the right of same-sex couples to marry.
Two years after he started serving on the Supreme Court, Souter joined Justices Anthony M. Kennedy and Sandra Day O’Connor to reaffirm a woman’s constitutional right to have an abortion, arguing that to reverse the basis of Roe v. Wade would appear to be a “surrender to political pressure. . . . So to overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court’s legitimacy beyond any serious question.”
Souter joined the majority opinion in 1992′s Planned Parenthood v. Casey, upholding the federal constitutional right to abortion established by Roe v. Wade.
Constitutional scholar John O. McGinnis contended, “Souter will be known wholly for doing the unexpected by becoming one of the most liberal justices on the court. . . . He leaves no independent jurisprudential mark and not a single memorable phrase in an opinion of which he was the acknowledged author.”
Souter retired in 2009 at the relatively young age of 69, permitting former President Barack Obama to replace him with leftist Justice Sonia Sotomayor.
